Allahabad High Court
State Of U.P. And 2 Others vs Prescribed Officer, Commercial ... on 18 September, 2023
Bench: Mahesh Chandra Tripathi, Prashant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:179658-DB
Court No. - 40
Case :- APPEAL U/S 37 OF ARBITRATION AND CONCILIATION ACT 1996 DEF. No. - 518 of 2023
Appellant :- State of U.P. And 2 Others
Respondent :- Prescribed Officer, Commercial Court, Jhansi And Another
Counsel for Appellant :- Saurabh Pratap Singh
Counsel for Respondent :- Sandeep Maniji Bakhshi
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Prashant Kumar,J.
1. Heard Sri Saurabh Pratap Singh, learned counsel for the State-appellant and Sri Sandeep Maniji Bakhshi, learned counsel for respondent.
2. The instant appeal under Section 37 of the Arbitration and Conciliation Act, 1996 has been filed challenging the judgment and decree dated 21.3.2023 passed by the Commercial Court, Jhansi in Arbitration Case No.52 of 2022 (State of U.P. and others Vs. M/s P.N. Garg) under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter to be referred as 'the Arbitration Act') and award dated 25.6.2022 passed in Arbitration Application No.2 of 2005 (P.N. Garg v. State of U.P. and others).
3. Apparently, there was a dispute between the parties, which has been referred to the arbitration and an award was passed on 25.6.2022 in favour of contesting firm. The same was challenged by the appellant department by filing an application under Section 34 of Arbitration Act. In the said proceeding, the respondent firm had also filed an objection on 21.1.2023. Thereafter, the Commercial Court, Jhansi has passed the impugned order on 21.3.2023 rejecting the application of the appellant filed under Section 34 of the Arbitration Act. Being aggrieved, the appellant has preferred the instant appeal.
4. As per Section 13 (1A) of the Commercial Court Act, 2015 read with Section 37 of the Arbitration Act, the limitation prescribed to file an appeal under Section 37 of Arbitration Act is 60 days. As the instant appeal is preferred with inordinate delay, it would be apt to have a glance on Section 13 (1A) of the Commercial Court Act, 2015, which is quoted hereunder:-
"(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgement or order."
5. As per the report of the Stamp Reporter, the instant appeal is preferred with delay of 80 days. The present appeal is preferred along with application under Section 5 of the Limitation Act. In which, no plausible explanation has been given in justifying such inordinate delay in filing the instant appeal. Only it is averred that on account of procedure delay, the instant appeal could not be filed well within time.
6. The primary aspect which arises for consideration in this appeal is as to whether such a long delay in filing the instant appeal, and that too by the State, is condonable by exercising power conferred under Section 5 of Limitation Act or not.
7. The Hon'ble Supreme Court in P. Radha Bai vs. P. Ashok Kumar reported in (2019) 13 SCC 445 has held as follows:-
"33.2. The proviso to Section 34 (3) enables a court to entertain an application to challenge an award after the three months' period is expired, but only within an additional period of thirty dates, "but not thereafter". The use of the phrase "but not thereafter" shows that the 120 days' period is the outer boundary for challenging an award. If Section 17 were to be applied, the outer boundary for challenging an award could go beyond 120 days. This Court has consistently taken this view that the words "but not thereafter" in the proviso of Section 34 (3) of the Arbitration Act are of a mandatory nature, and couched in negative terms, which leaves no room for doubt. "
8. The Hon'ble Supreme Court in Union of India vs. M/s Varindera Constructions Ltd. reported in (2020)2 SCC 11 has held that since a Section 34 an application has to be filed within a maximum period of 120 days including the grace period of 30 days and the appeal filed from the same proceeding under Section 37 is also a continuation of original proceeding, which should also be covered by the same drill.
9. The Hon'ble Supreme Court in Government of Maharashtra (Water Resources Department) Represented by Executive Engineer Vs. M/s Borse Brothers Engineers & Contractors Pvt. Ltd. reported in (2021) 6 SCC 460 has held that, given the aforesaid object of speedy disposal sought to be achieved both under the Arbitration Act and the Commercial Courts Act, for appeals filed under Section 37 of the Arbitration Act that are governed by Articles 116 of the Limitation Act or Section 13(1A) of the Commercial Courts Act, a delay beyond prescribed time can only be condoned by way of exception and not by way of rule only in a fit case in which a party has otherwise acted bonafide and not in a negligent manner, a short delay beyond such period can, in the discretion of the court, be condoned, always bearing in mind that the other side of the picture is that the opposite party may have acquired both in equity and justice, what may now be lost by the first party's inaction, negligence or laches.
(emphasis supplied)
10. The Hon'ble Supreme Court in the matter of Mahindra and Mahindra Financial Services Ltd. Vs Maheshbhai Tinabhai Rathod and others reported in (2022) 4 SCC 162 has held that where limitation is prescribed and the extent to which it can be condoned is circumscribed, the Court under Section 5 of Limitation Act cannot condone the delay beyond the period prescribed under the Arbitration and Conciliation Act.
11. The instant appeal has been preferred with inordinate delay of 80 days and no plausible explanation has been given in justifying the inordinate delay in filing the instant appeal. As such we are not inclined to proceed further in the matter.
12. The instant appeal stands dismissed accordingly.
Order Date :- 18.9.2023
Manish Himwan
